HIRUBEN PPARBATBHAI SATASIYA vs BHAGWANJIBHAI POPATBHAI RANPARIA
- Court
- Gujarat High Court
C/FA/4560/2006 CAV JUDGMENT DATED: 15/07/2026
Reserved On : 24/06/2026
Pronounced On : 15/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4560 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
Yes
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HIRUBEN PPARBATBHAI SATASIYA
Versus
BHAGWANJIBHAI POPATBHAI RANPARIA & ORS.
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Appellant(s) No. 1
MR RR TRIVEDI(941) for the Appellant(s) No. 1
MR JAYANT P BHATT(169) for the Defendant(s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The appeal under section 96 of the Code of Civil Procedure,
1908 (for short ‘CPC’ ) at the behest of original plaintiff questions
the legality and propriety of the judgment and decree dated
12.04.2006, passed by the learned Principal Senior Civil Judge,
Dhoraji in Civil Suit No.353 of 2001, by which learned Principal
Senior Civil Judge, Dhoraji dismissed the suit of the plaintiff.
2. For convenience, parties are referred to their original
status before the learned Trial Court.
3. The Plaintiff claims to be the adopted daughter of the
deceased, Bhovanbhai Narsibhai, and claims ownership over his
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immovable properties. Accordingly, she seeks a mandatory
injunction directing the Defendants to hand over vacant and
peaceful possession of the suit properties, alongside a
permanent injunction restraining them from creating any third-
party rights or alienating the same. Additionally, the Plaintiff has
prayed for the grant of mesne profit . The particulars in regards to
the suit properties is made in para 14(A) of the plaint as under.
It reads as under (it is in Gujarati, for better understanding, it is
translated in English):-
Agriculture Land :
Survey No. Acre-Guntha
16 6-03
20/1 Paiki 10-02
12 Paiki 4-32
75 2-07
76 6-08
96/2 Paiki 2-27
135/2 2-29
191 1-16
3.1. The Plaintiff pleads that her mother, Maniben, was initially
married to one Chaganbhai Naranbhai Vakariya, out of said
wedlock, she was born in the year 1949. Following the demise of
Chaganbhai, Maniben became a widow. One Bhovanbhai
Narsibhai Ranpariya, a resident of Village Sanjadia, Taluka
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Jamkandorna, was already married to Santokben, and had son
named Keshubhai. However, Keshubhai passed away without
issue in the year 1946. As Bhovanbhai was left without any
surviving lineage, he contracted a second marriage with the
Plaintiff’s mother, Maniben, in the year 1949, at that time the
Plaintiff was approximately six months. It is the specific case of
the Plaintiff that the said second marriage was solemnized
subject to a pre-condition that the Plaintiff would be taken in
adoption by Bhovanbhai Narsibhai. Upon completion of the
requisite adoption formalities, Maniben, along with the Plaintiff,
started living with Bhovanbhai Narsibhai, who maintained both
of them throughout his lifetime. Subsequently, upon the Plaintiff
(Hiruben) attaining marriageable age, the deceased Bhovanbhai,
considering his duty as adoptive father also performed her
marriage ceremonies.
3.2. Santokben, the first wife of Bhovanbhai, passed away in
the year 1988. Subsequently, Maniben, the mother of the
Plaintiff and the second wife of Bhovanbhai, passed away in the
year 1989, and Bhovanbhai expired on 08.01.1991. It is the case
of the Plaintiff that upon their demise, she, being legally adopted
daughter of Bhovanbhai, is the sole/lawful legal heir entitled to
inherit the suit properties owned and possessed by the deceased
Bhovanbhai.
3.3. According to the Plaintiff, Defendant No. 1 (Bhagvanjibhai
Popatbhai Ranpariya) is the son of Bhovanbhai’s brother, Popat
Narsibhai, while Defendant Nos. 2 to 4 are the sons of the said
Bhagvanjibhai. It is further alleged that Defendant Nos. 1 to 4,
by fabricating and forging a bogus Will attributed to the
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deceased Bhovanbhai, have unlawfully dispossessed the Plaintiff
of the suit properties. It is also pleaded that lands bearing
Survey Nos. 96/2 paiki, 135/2, and 91 were originally mutated
in the name of the Plaintiff in the relevant revenue records and
despite this, the Defendants have illegally siphoned off the
income from the suit properties and got the revenue entries
mutated in their favor based on the said forged Will.
3.4. In view of aforesaid pleading, plaintiff filed the Special Civil
Suit No. 353 of 2001, claiming following relief (it is in Gujarati,
for better understanding, it is translated in English) : -
“(A) It is a humble prayer to declare that the Plaintiff, in the
capacity of being the daughter of the deceased Bhovanbhai
Narshibhai Ranpariya, is the sole owner of all the movable
and immovable properties mentioned in paragraph 14 of the
suit. It is a humble prayer to declare that the alleged Will is
not binding upon the Plaintiff. It is a humble prayer to pass a
decree directing that the peaceful, direct, and vacant
possession of the suit land be handed over to the Plaintiff.
(B) It is a humble prayer to declare that the Defendants have no
right to sell, mortgage, gift, or otherwise transfer the
properties mentioned in paragraph 14 of the suit, or to hand
over its possession to any third party.
(C) It is a humble prayer to grant a permanent injunction
restraining the Defendants from selling, mortgaging, gifting,
or otherwise transferring the properties mentioned in
paragraph 14 of the suit, or from handing over its
possession to any third party, and to grant an interim
injunction until the final disposal of the suit.
(D) It is a humble prayer to grant mean profits of the suit
property for the last two years up to the date of recovery of
possession, and to pass a decree directing the recovery of
the said mean profits in favor of the Plaintiff from the person
and properties of the Defendants.
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(E) It is a humble prayer to grant any other relief that may be
available and to award the costs of the suit.”
4. The Defendants, upon being duly served with summons,
entered their appearance through their learned advocate. During
the pendency of the suit, the temporary injunction application
moved by the Plaintiff was allowed. The learned Trial Court, after
framing issues at Exh. 26, permitted both parties to lead their
respective oral and documentary evidence. Ultimately, upon
appreciation of the evidence on record, the Trial Court observed
that prior to the enactment of the Hindu Marriage Act, 1955,
polygamy was legally permissible. It held that the long
cohabitation of Maniben with Bhovanbhai sufficiently
established her status as the legally wedded second wife of the
deceased Bhovanbhai. However, the learned Trial Court refused
to recognize the Plaintiff as the legally adopted daughter of
Bhovanbhai, holding her status to be that of a foster child and
on such findings, the Trial Court dismissed the suit. Being
aggrieved and dissatisfied by the said judgment and decree of
dismissal, the Plaintiff has preferred the present first appeal.
5. Learned advocate Mr. Bhavesh Trivedi, appearing on
behalf of the Appellant, took this Court through the entire
Record and Proceedings (R&P), including the evidence recorded
before the learned Trial Court in juxtaposition with the issues
framed. He submitted that the Trial Court erred in holding that
the Plaintiff was not the legally adopted child of the deceased
Bhovanbhai. He further contended that the Plaintiff had
examined her maternal uncle, Mohanbhai Manjibhai Vadariya
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(PW-1) at Exhibit 41, who categorically deposed that his sister,
Maniben, married Bhovanbhai after demise of her first husband,
Chaganbhai, subject to the condition that the Plaintiff (Hiruben)
would be taken in adoption by Bhovanbhai. Learned advocate
submitted that this condition was duly satisfied given that
Bhovanbhai had no surviving lineage at the relevant time. He
further argued that in the absence of any rebuttal evidence, a
legitimate presumption arises in favor of the adoption, especially
since the Plaintiff resided with Bhovanbhai and Maniben
throughout her life, and her marriage was arranged and
solemnized by Bhovanbhai in his capacity as her adoptive father.
It was urged that Bhovanbhai treated and recognized the
Plaintiff as his daughter in revenue records, thereby establish a
valid adoption. Consequently, by virtue of Section 8 of the Hindu
Succession Act, 1956, the Plaintiff, being the adopted daughter,
is fully entitled to inherit the movable and immovable properties
of the deceased Bhovanbhai as like biological daughter.
5.1. Learned advocate Mr. Trivedi further submitted that since
the case involves an ancient adoption prior to the enactment of
the Hindu Adoptions and Maintenance Act, 1956, the conduct
and inter-se relationships of the parties assume paramount
relevance under Section 50 of the Indian Evidence Act, 1872. He
argued that since the Plaintiff had successfully established the
factum of adoption through credible evidence, the learned Trial
Court committed a grave error in misapplying the doctrine of
factum valet . In support of his contentions, he placed reliance
upon the judgment of the Orissa High Court in Khadali Sahu v.
Malli Sahuani & Others (First Appeal No. 139 of 1999) . He
further cited the decision of the Hon’ble Supreme Court in L.
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Debi Prasad v. Smt. Tribeni Devi [AIR 1970 SC 1286] to to
submit that in all ancient transactions it is but natural that
positive oral evidence will be looking passage of time gradually
wipes out such evidence and thereby human affairs often have to
be judged on the basis of probabilities. It is submitted that where
an adoption of the year 1949 is pleaded and corroborated by the
continuous conduct of the parties as father and daughter, the
Court must consider that the substantial time lapse between the
date of the alleged adoption and the date on which the party is
called upon to adduce evidence with regard to the existence of
such adoption.
5.2. In line of above submission, learned advocate Mr. Trivedi
submitted that insisting upon proof of “dattak” datta -homa or
other customary ritual carried to prove adoption would be
travesty of the justice. He submitted that the learned Trial Court
erred in holding that the Plaintiff was not the legally adopted
child of the deceased Bhovanbhai. He further contended that
since the Plaintiff had resided with Bhovanbhai from age of six
months throughout his lifetime, and Bhovanbhai treated and
nurtured her on par with a biological daughter proved that
plaintiff was adoptive daughter. It is submitted that continuous
treatment and social recognition are sufficient to establish that
the Plaintiff was the legally adopted daughter of the deceased
Bhovanbhai. It is submitted that plaintiff being the sole Class-I
legal heir of the deceased under the Hindu Succession Act, 1956,
is fully entitled to inherit the suit properties as the absolute
owner thereof. It was thus submitted that the learned Trial Court
committed a grave error in dismissing the suit.
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5.3. Upon above submissions, learned advocate Mr. Trivedi
submitted to allow this appeal and to quash and set aside
impugned judgment.
6. Learned counsel for the respondent, Mr. Jayant Bhatt, in
converse supported the impugned judgment and order and
submitted that the deceased, Bhovanbhai, had duly executed a
registered Will whereby he bequeathed all his properties in
favour of Defendant No. 1. He further submitted that the said
Will was produced before the revenue authorities for the
mutation of entry, and the authorities, upon satisfying
themselves as to the genuineness of the Will, mutated the
revenue records in favour of Defendant No. 1. It was also
contended that although the plaintiff may have been brought up
by the deceased Bhovanbhai, she was never legally adopted as
his daughter at any point in time. He further argued that in the
absence of any Class-I heir, the defendant, being the son of the
biological brother of the deceased, was the sole legal heir entitled
to inherit the immovable properties, and accordingly, the suit
properties devolved upon him. Since the learned Trial Court has
recorded cogent findings while dismissing the suit, no grounds
arise to interfere with the impugned judgment and decree. It is
therefore, prayed that the appeal be dismissed.
7. Regard had been to rival submission of both sides and
considering impugned judgment and decree and Record and
proceedings, at the outset question arise for consideration in the
appeal is whether, prior to the enactment of the Hindu Adoptions
and Maintenance Act, 1956, was it legally permissible to adopt a
daughter ?. In other words, whether the adoption of a female
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child was permissible under treaties ancient Hindu law ?
Whether learned Trial Court has committed error to dismiss the
suit? What order ?
8. The facts of the case are undisputed. The deceased,
Bhovanbhai, was firstly married to Santokben, and during her
lifetime, he contracted a second marriage with Maniben.
Maniben was previously married to Chhaganbhai, and the
plaintiff was born out of that wedlock. Upon the demise of
Chhaganbhai, when plaintiff was merely six months old,
Bhovanbhai contracted to second marriage with Maniben.
Keshubhai, the son of Bhovanbhai born through Santokben,
passed away prior to second marriage of Bhovanbhai in the year
1946. During his lifetime, the deceased Bhovanbhai cohabited
with both of his wives, namely Santokben and Maniben, and the
plaintiff was brought up by him. Regarding the validity of
Bhovanbhai’s second marriage to Maniben, the learned Trial
Court observed that since it was proved on record that Maniben,
upon becoming a widow, lived with Bhovanbhai as his second
wife and as this arrangement preceded the enactment of the
Hindu Marriage Act, 1955, the second marriage was legally
permissible. However, applying the doctrine of factum valet , the
learned Trial Court considered that even if the plaintiff’s
adoption by the deceased Bhovanbhai was proved, as a matter of
fact, such an adoption could not be sustained as legal and valid
under ancient Hindu Law. The Trial Court answered this
question, accordingly, against the plaintiff.
9. Firstly, let got through issues framed by learned Trial
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Court. Issues are framed at Exh.26. They are as under :-
“1. As per plaint para-2, whether plaintiff proves that
Maniben married with Chhaganbhai Naranbhes and
Chhagan bhai Narabhia expired ?
2. As per plaint pera-3, whether plaintiff proven that
Bhovanbhai Narshibhai Ranparia born near about 1910 and
he first married with Santokben and by this wedlock
Keshubhai born and he expired in the year 1946 as
unmarried ?
3. As per plaint para 4, whether plaintiff proves that
Santokben could not deliver the child, therefore. Bhovanbhai
married with Maniben near about 1949 and at that time
plaintiff was aged about six months ?
4. As per plaint para-5, whether plaintiff proves that as per
agreement Hiruben was adopted by Bhovanbhai and
Santokben and maintained her as daughter and also
married her and after marriage of Maniben with
Bhovanbhai, Hiruben resided with Maniben and Bhovenbhai
?
5. As per plaint para-6, whether plaintiff proves that
Santokben expired near about 1988, Maniben expired near
about 1989 and Bhovanbhai expired on 08/01/91 ?
6. As per plaint para-7, whether plaintiff proves that before
the death of Bhovanbhai in the year 1991, he was suffering
from paralysis and not able to understand good and bad
since six months prior to his death ?
7. As per plaint para-10, whether plaintiff proves that
defendant no.1 was managing the property of Bhovanbhai
during his life time ?
8. As per plaint para-11, whether plaintiff proves that
defendant no.1 was connected with politics and her
intention was to heirship the property ?
9. As per plaint para-12, whether plaintiff proves that she
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was demanded account from deft.no.1 & deft.no.1 denied ?
10. As per plaint, para 13, whether plaintiff proves that
under the will, defendant no.1 entered his name in record of
rights ?
11. As per plaint, para 14 and 15, whether plaintiff proves
the immovable property of Bhovanbhai ?
12. As per WS Exh.9, para 2, whether defendants prove
that Santokben was alive and therefore, there was no legal
necessity fr the second marriage ?
13. As per WS Exh.9, para 3 and 7, whether defendants
prove plaintiff and her mother resides as refuges and on
humanitarian ground, plaintiff married and expenditure born
by Bhovanbhai ?
14. As per W.5.Ex.9 para-10,11 & 16, whether defendants
prove that Bhovanbhai had executed registered will in
favour of defendant no.) and under the will, revenue entry
entered in the name of defendant no.1 ?
15. As per W.5.Ex. 9 para-12, whether defendants prove
that they are the owners and possessors of the disputed
property ?
16. As per раrа-13(1) of W.5.Ex.9, whether defendants prove
that S.Nos.96/2, 135/2 and 191 onter the possession of the
defendants and only name of the plaintiff inserted and
under family agreement. plaintiff has handed over the land
to defendants though, plaintiff has filed the suit ?
17. As per W.S.Ex.9 para-14, whether defendants prove that
suit in bad for res judicata, delay, laches and
acquiescence ?
18. As per W.S.Ex.9 para-18 and 21. whether defendants
prove that suit is under valued and on the deficit court fees
stamp, therefore, plaint should be rejected ?
19. As per W.S.Ex.9 para-20, whether defendants prove that
suit is without cause of action ?
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20. As per WS Ex.9 para-21, whether defendants prove that
suit barred by law of limitation 7
21. As per W.5.Ex.9 para-22, whether defendants prove that
the estoppel is against the plaintiff ?
22. Whether plaintiff is entitled decree as per plaint para-
18 ?
23. What order and decree ?”
10. In all, 23 issues were framed by the learned Trial Court.
Issue No.3 was amended, instead of 6 years it was replaced by 6
month. After permitting parties to lead the evidence, learned
Trial Court answered issue Nos.1, 2, 3, 5, 11, 18 in affirmative
and answered issue no.12, 14, 17, 19 to 22 in negative. Issue
No.4 and 13 in partly affirmative and partly negative; Issue
No.15 partly affirmative, Issue No.6 to 10 and 16 not required to
be discussed, and ultimately dismissed the suit.
11. The root question which governs the decision in this appeal
is whether adoption of daughter was permissible, prior to
enactment of Hindu Adoption and Maintenance Act 1956?
12. In N. R. Raghavachariar's Hindu Law Principles and
Precedents by Professor S. Venkataraman, 7th edition , the
adoption and its object are enumerated in section 78. Section 79
is with regard to texts on adoption and section 82 is in regard to
who can adopt. Sections 78, 79 and 82 reads as under :-
“78. Adoption and its object. The origin of the custom of
adoption is lost in antiquity, and may well have been no
more than the natural desire for a son as an object of
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affection, a protection in old age, and at the last an heir.
However this may be, it is certain that through all the
centuries which have seen the spread of Brahminical
influence, and among all classes which have come under its
sway, a peculiar religious significance has attached to the
son. He is so essential to the spiritual welfare of the souls of
his immediate ancestors that an extensive class of
subsidiary sons was admitted to the family, all of whom
could per-form the necessary ceremonies, though only some
of them were allowed full rights of inheritance. Of these,
among the orthodox classes, only the adopted son is now
recognised, and he, in the absence of an aurasa or natural
born son, is clothed with all the attributes of a son and is
from the date of adoption regarded as having been born in
his adoptive family. The 9th Chapter of Manu's Code, which
has always been regarded as of paramount authority, is
instinct with this doctrine and it is clear that the foundation
of the Brahminical doctrine of adoption is the duty which
every Hindu owes to his ancestors to provide for the
continuance of the line and the solemnisation of the
necessary rites. Adoption may be defined as the formal
affiliation. as the son of the person of one who is in fact not
his son, and this was one of the means adopted by the
primitive Aryans for satisfying the necessity for the male
offspring which they felt so keenly in days when the security
of person and property depended much upon the number of
males which a family could claim as its members. But as
days went on, and better order reigned in society, the
number of subsidiary sons mentioned in the previous
chapter diminished with the increasing abhorrence to the
sexual looseness which characterised the recognition of
many of them, and the importance of the adopted son began
to increase. The rise of the adopted son in the estimation of
the society was further accelerated by the Brahmin priests
who advocated the institution of adoption as absolutely
necessary for every sonless man's spiritual salvation both
here and in the world beyond. Added to this, the natural
craving of a man for the celebration of his name and the due
perpetuation of his lineage, which increased with the desire
for partition and self-acquisition becoming more and more
common, gave an added impetus to the growth of this
institution. It can therefore be said that the practice of
adoption is due not only to the timorous superstition of the
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Hindus that by leaving a male child in this world, one can
secure oneself from the torments of the next, but also to the
secular desire for the perpetuation of family properties and
names. The substitution of a son of the deceased for
spiritual reasons is the essence of the thing and the
consequent devolution of property a mere accessory to it. The
validity of an adoption has to be judged by spiritual rather
than temporal considerations and devolution of property is
only of secondary importance.
79. Texts on Adoption. -The whole Sanskrit law of adoption
is evolved from two texts and a metaphor (Mayne, 137). The
texts are those of Manu and Vasishta and the metaphor is
that of Saunaka. Manu says: "He whom his father or mother
gives to another natel disposed, is considered as a son
given, the gift being confirmed by pouring water." as his son,
provided that the donee has no issue, if the boy be of the
same class, and affectionately disposed, is considered as a
son given, the gift being confirmed by pouring water.
Vasishta's text is in greater detail and runs "A son formed of
sexual fluids and of blood. proceeds from his father and
mother as an effect from its cause. Both parents have power
to sell, or to desert him. But let no man give, or accept, an
only son, since he must remain to raise up a progeny for the
obsequies of ancestors. Nor let a woman give or accept a son
unless with the assent of her lord. He who means to adopt a
son must assemble his kinsmen, give humble notice to the
King and then having made an oblation to fire with words
from the Veda, in the midst of his dwelling house, he may
receive, as his son by adoption, a boy nearly allied to him or
on failure of such, even on remotely allied. But if doubts
arise let him treat the remote kinsman as a Sudra. The class
ought to be at his son by adoption, a boy nearly allied to
him, or on failure of such, even one remotely known, for
through one son the adopter rescues many ancestors". These
two texts read along with the metaphor of Saunaka that "the
adopted son must be the reflection of a on have given rise to
numerous rules for observance in the case of a valid
adoption, and the Dattaka Mimamsa of Nanda Pandita and
the Dattka Chandrika of Devanda Bhatta, two treatises on
the particular subject of adoption enjoying the highest
reputation and respected all over India, are the chief
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authorities governing questions of adoption, though when
they differ, the doctrine of the latter is adhered to in Bengal
and by the Southern Jurists, while the former is held to be
an infallible guide in the Mithila and Benaras Schools.”
82. Who can adopt.-"By a sonless person only should
always a substitute of a son be anxiously made, for the
sake of funeral oblations, libations of water and
obsequialrites." Atri cited in Mandlik's Hindu Law. Every
Hindu male who has neither a son, a grandson or great-
grandson, aurasa or adopted, 18 at the time of adoption,
and is not then otherwise disqualified, can adopt a son to
himself. But the mere physical existence of a son, grandson,
or great-grandson is not sufficient to preclude the father from
making an adoption, unless the son is in a position to render
the spiritual services necessary for the father's salvation.
Thus if an only son has been given away in adoption, his
existence does not preclude his natural father from making
an adoption, except when he has been given away in the
diyamushyayana form, Nor does the existence of a son in
embryo invalidate an adoption, Except in the case of kritrima
adoption, an adoption is always made to a male, though it
can be made as mentioned in section 101 by a woman. The
adoption, however, by an unmarried woman prior to the
Hindu Adoptions and Maintenance Act, 1956 was held to be
'unheard of and that it could not be recognised. A joint
adoption of a person by two persons would be invalid.”
13. The above text on ancient Hindu law distinctly establish
that adoption was permitted only for the son. Origin of the
custom of adoption is lost in antiquity but was no more than a
natural desire for a son as an object of affection, protection in
old age and to continue the lineage and also to perform the pind-
dan.
14. Mayne’s Treatise on Hindu law and Usage, 11th edition
by N. Chandrashekhar Aiyar in section 138 to 140 observed as
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under :-
“138. It is evident that the spiritual motive was not so
largely When, owing to wars and other causes, families
tended to become extinct, or rights to large estates and
principalities were in jeopardy on the extinction of leading
families and when claims had to be advanced before the
rulers of the country for the recovery of estates, adoption
must have become a fertile expedient for reviving or
enforcing such claims. Adoption of a son to the last owner
was a simple and intelligible device compared to the
difficulty of proving or establishing the claim of a widowed
rani or a remote male heir. It is not surprising therefore that
in India, after the Gupta empire and especially in the
Mohammedan period, adoption became even more
important. Accordingly, when the Mitakshara was written,
Vijnanesvara, in commenting upon Yajnavalkya who
assigns the adopted son to the seventh rank and does not
treat him as an heir to the adopted father's collaterals, treats
of him adequately and restores him to the position assigned
to him by Manu (1). The Smritichandrika is even more
emphatic when it says that, in the Kali age, the adopted son
is alone acknowledged, besides the aurasa son and it
prohibits the appointment of a daughter (u). Since the sale of
a son was blameworthy and gift was spiritually the most
meritorious form of transferring dominion, it became the
normal mode of adoption. The other adopted sons, the son
bought (Krita), the deserted son (Apaviddha) and the son
self-given (Svayamda:ta) disappeared except the son made
(Kritrima) in Mithila (v). The Kritrima son however is not an
adopted son in the full sense. When the texts say that a man
should adopt after giving intimation to the king (w), it is
evident that the adoption partook more of a secular
character than of a religious one as such intimation was
obviously necessary in the case of relatively large
possessions. The religious motive for taking a son in
adoption could not have been very great if Vishnu,
Yajnavalkya and Narada could assign him only a very low
place. While his identity with the immediate agnatic family
is now fully established, it is noteworthy that the adopted
son's sapinda relationship in the adoptive family extends
only to three degrees and not to the usual seven degrees,
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and the period of pollution extends only to three days and
not to the usual ten days. What is even more important is
that on the anniversary of his adoptive father's death, he
performs the sraddha in the ekoddishtha form in honour of
the deceased only, ie, consecrated to a single ancestor and
he does not, like the aurasa son, offer divided oblations to
the fourth, fifth and sixth ancestors, even when he performs
the sraddha in the usual way (x). While the continuance of
the prohibition to marry in his own natural family is
intelligible on grounds of consanguinity, that he should
occupy a position greatly inferior to the son from the religious
point of view, shows that the recognition of the institution of
adoption has been more due to secular reasons than to any
religious necessity.
139. The religious motive for adoption never altogether
excluded the secular motive. The propriety of this motive
was admitted by Sanskrit writers themselves. In the
ceremonial for adoption given by Baudhayana, the adopter
receives the child with the words: "I take thee for the
fulfilment of religious duties. I take thee to continue the line
of my ancestors" (y). The Dattaka Mimamsa quotes a text
that a man should adopt a son "for the sake of the funeral
cake, water and solemn rites, and for the celebrity of his
name" (z). And the author of the Dattaka Chandrika admits
that, even where no spiritual necessity exists, a son may,
and even ought to, be adopted, for 'the celebration of name,
and the due perpetuation of lineage' (a). In fact, the earliest
instances of adoption found in the Hindu legend are of
daughters (b). The Kritrima form of adoption, which is still in
force in Mithila, has no connection with religious ideas.
Among the tribes who have not come under Brahmanical
influence, we find that adoption is equally practised; but
without any of the rules which spring from the religious
fiction. One Sanskrit purist actually laid it down that Sudras
could not adopt, as they were incompetent to perform the
proper religious rites (c). As a matter of fact they always did
adopt; but were expressly freed from the restrictions which
fettered the higher classes. They not only might, but did
adopt the son of a sister, or of a daughter, who was
forbidden to others. So in the Punjab, adoption is common to
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Jats (d) and Sikhs, but with there it is simply the
appointment of an heir. Similarly in Western India amongst
the Talabda Koli caste and Kadwa Kunbi caste. though no
religious significance attaches to adoption, the right to adopt
has been upheld by the Courts (e). The Jains have so
generally adopted the Hindu law that the Hindu rules of
adoption are applied to them in the absence of a contrary
usage (1) and adoptions are quite common among them. But
since they repudiate the Brahminical doctrine of obsequial
ceremonies, the offering of oblations for the salvation of the
soul of the deceased and do not believe that a son either by
birth or by adoption confers spiritual benefit on the father,
the objects and motives of such adoptions are purely secular
(g). Secular motives are pre-dominant in adoptions effected
among Nattukottai Chettis who, more often than not,
possess considerable property and desire to direct its
devolution along approved channels, while at the same time
ensuring the performance of some religious rites to which as
Hindus they also attach value (g1).
Amongst the vast majority of Hindus, mere gift and
acceptance are quite sufficient to constitute adoption; they
are secular acts primarily. though the son adopted is
expected to and does perform the customary funeral rites. In
Mithila, where the Hindus are as religious as in the rest of
India, the religious duty of a widow is not recognised and
she is not entitled to make an adoption in the dataka form.
The prohibition shows that adoption is treated as a secular
institution, though it may carry with it religious obligations
on the part of the son adopted. Again, a widow who has the
authority of her husband or the assent of his sapindas is not
bound to adopt a son to perform the sraddhas for her
husband. The religious motive here is very much weakened.
Where a widow has the right to adopt, even without the
permission of her husband or the assent of his sapindas, as
in Bombay, but need not, the reasonable inference is, that it
is her right because adoption may be a proper act, but not a
religious duty on her part. The religious motive must
therefore be admitted to be not very appreciable, even in
Bombay, especially as a man is allowed to adopt one older
than himself, or a married man with children (k). Even in
cases where the Court has held that there is a mandate to
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the widow to adopt, she is not bound to make an adoption.
In most cases, the authorities given by husbands in wills
and other docu ments are purely permissive, showing no
consciousness on the part of the husband of the religious
necessity for adopting a son. On the other hand, a husband
often purely from secular motives empowers his wife to
adopt a son after his death to continue his line and to inherit
his property and keep up his name (i). His authority merely
equips the widow with either a sword or a shield for her
protection against the reversioners. In Venkatanarasimha v.
Parthasarathy Appa Rao (j), in construing a will containing
an authority to adopt, the religious motive was not allowed
to aid the construction, and the Privy Council held that, in
the absence of a direction by the testator that there should
be an adoption, as he would naturally have done, had he
wished in all events to secure that there should be a son to
perform the due religious rites, the language of permission
pointed to the predominance of the secular motive.
The acceptance of an only son in adoption, in contravention
of a strict religious precept, is certainly against the
attribution of a religious motive. So too, any family or local
usage which permits the adoption of one's daughter's son or
sister's son or a mother's sister's son, in contravention of a
rule which is both religious and legal, cannot be held to
indicate anything but an overmastering secular motive. It is,
however, undeniable that, in the vast majority of cases
amongst the Hindus, there is a religious motive, if varying in
degree (k), though it is equally undeniable that the secular
motive is in almost all cases the more dominant. The
question whether an adoption is inspired by secular or
religious motives has naturally arisen in the case of
adoptions by widows, made long after their husbands'
deaths. In many of the cases, it cannot be said that such
adoptions by widows are made from religious motives. They
are often made to divert the course of succession, or to
dispossess an heir in whom the inheritance has already
vested. Religious motives in such cases are in fact
conspicuously absent.
At the same time, it is unsafe to embark upon an enquiry in
each case as to whether the motives for a particular
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adoption were religious or secular. An intermediate view is
possible, namely, that while an adoption in itself may be a
proper act, inspired in many cases by religious motives,
courts are concerned with an adoption, only as the exercise
of a legal right by the widow and not as the fulfilment by her
of a religious duty; and that the limits to the exercise of her
power should be set, not so much from the religious point of
view, as from that of conflicting rights. The controversy,
however, must be taken to have been set at rest in favour of
the conventional view by the judgment of the Judicial
Committee in Amarendra's case (1) which, reiterating "the
well-established doctrine as to the religious efficacy of
sonship", gives full effect to it.
140. The whole Sanskrit law of adoption is evolved from a
few texts and a metaphor. The metaphor is that of Saunaka,
that the boy to be adopted must bear the reflection of a son
(m). The texts are those of Manu, Vasishtha, Baudhayana,
Saunaka and Sakala, Manu says: "That boy, equal by caste,
whom his mother or his father affectionately gives,
confirming the gift with a libation of water, in times of
distress to a man as his son, must be considered as an
adopted son (Datrima)". "Of the man who has an adopted
(Datrima) son possessing all good qualities, that same son
shall take the inheritance, though brought from another
family", "An adopted son shall never take the family name
and the estate of his natural father; the funeral cake follows
the family name and the estate, the funeral offerings of him
who gives his son in adoption cease as far as that son is
concerned" (n). Vasishtha says, "(1) Man formed of uterine
blood and virile seed proceeds from his mother and his
father as an effect from its cause. (2) Therefore the father
and the mother have power to give, to sell, and to abandon
their son. (3) But let him not give or receive in adoption an
only son. (4) For he must remain to continue the line of the
ancestors. (5) Let a woman neither give nor receive a son
except with her husband's permission. (6) He who desires to
adopt a son, shall assemble his kinsmen, announce his
intention to the King, make burnt-offerings in the middle of
the house, reciting the Vyahritis, and take as a son a not
remote kinsman, just the nearest among his relatives" (o). To
the same effect is Baudhayana in his Grihyasutra (p).
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Saunaka lays down rules substantially similar but the
following which is not covered by the other writers is
important: "The adopter having taken the boy by both
hands, with the recitation of the prayer, having inaudibly
repeated the mystical invocation :having kissed the forehead
of the child; having adorned with clothes, and so forth, the
boy, bearing the reflection of a son; accompanied with
dancing, songs and benedictory words, having seated him in
the middle of the house ; and having performed the homa or
burnt sacrifice with the holy texts, should complete the
remaining part of the ceremony. The adoption of a son, by
any Brahmana, must be made from amongst sapindas. ; or
on failure of these, an asapinda may be adopted; otherwise
let him not adopt. Of Kshatriyas, in their own class
positively: and (on default of a sapinda kinsman) even in the
general family, following the same guru; of Vaisyas, from
amongst those of the Vaisya class; of Sudras, from amongst
those of the Sudra class. Of all, and the tribes likewise, (in
their own) classes only: and not otherwise. But a daughter's
son, and a sister's son, are affiliated by Sudras. For the
three superior tribes, a sister's son is nowhere (mentioned
as) a son (q). By no man, having an only son, is the gift of a
son to be ever made. By a man having several sons, such
gift is to be made, on account of difficulty" (r).
Sakala says: "Let one of a regenerate tribe destitute of male
issue on that account adopt as a son the offspring of a
'sapinda' relation particularly: or also next to him, one born
in the same general family. If such exist not, let him adopt
one born in another family: except a daughter's son, and a
sister's son, and the son of the mother's sister" (s).
These texts apply only to the dattaka form. From these texts
and the commentaries, a body of law has been developed,
which will be considered under the following heads: First,
who may take in adoption; Second, who may give in
adoption; Third, who may be adopted; Fourth, the
ceremonies necessary to an adoption; Fifth, the results of
adoption; Sixth, the evidence of adoption.”
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15. Thus the object of adoption are twofold; the first is
religious to secure spiritual benefit to the adopter and his
ancestors by having a son for the purpose of offering funeral
cakes and libations of water to the soul of the adopter and his
ancestor. The other is secular object to secure an heir and
perpetuate the adopter’s name. The substitution of son of
deceased for spiritual reasons is the essence of the things and
the consequent devolution of property a mere accessory to it,
thereby even if person not in possession of property, he was
permitted to adopt son.
th
16. Prof. Mulla in 24 Edition on Hindu Law , in regards to
law prior to Hindu Adoptions and Maintenance Act, 1956 in
section 444 held as under :-
“444. Object of adoption
The objects of adoption are twofold the first is religious, to
secure spiritual adopter and his ancestors by having a son
for the purpose of offering funeral cakes and libations of
waters to the soul of the adopter and his ancestors. The
second is secular, to secure as heir and perpetuate the
adopter’s name.
The Supreme Court, agreeing with earlier decisions of the
Privy Council has expressed the view that the validity of an
adoption is to be determined by spiritual rather than
temporal considerations, and that devolution of property is
only of secondary importance.
When a Hindu gives a boy in adoption, his act is, according
to the Hindu shastra, in the nature of a sacred gift
voluntarily made. It is on that account, that Manu requires
the gift to be confirmed by pouring water. A daughter given
in marriage, which to called kanyadan and a son given in
adoption, which is called putradan, stand in this respect on
the same footing. Both are gifts for religious and secular
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purposes."
17. Even in Hindu Nibadhan by His Excellency of State of
Baroda in section 20 recognized adoption of only son.
18. In view of above what is to be noticed that the plaintiff
though has been brought up as his own child by the deceased
Bhovanbhai, the treaties and source of Hindu law, prior to
enactment of Adoption and Maintenance Act, 1956, lawfully does
not recognize adoption of female. In other words, ancient Hindu
Law does not recognize girl to be adopted child.
19. It was argued by the learned counsel, Mr. Trivedi, that the
plaintiff accompanied her mother, Maniben, to her matrimonial
home as an Angaliyat child, subject to the condition that she
would be formally adopted by Bhovanbhai. However, as
evaluated and discussed hereinabove, the customs, texts, and
sources of Hindu Law prevailing prior to the enforcement of the
Hindu Adoptions and Maintenance Act, 1956, demonstrate that
the adoption of a female child was not legally recognized under
ancient Hindu law. It is the specific case of the plaintiff that she
was brought into the household as an Angaliyat by her mother
in the year 1949. According to the Bhagavadgomandal Gujarati
dictionary, the term Angaliyat signifies a son or daughter born
out of a mother's previous wedlock who accompanies her to a
subsequent union, carrying child by the finger or hand. This
customary practice is predominantly prevalent among certain
communities in Gujarat, such as the Patidars, Kanbis, and Dalit
communities, among others. It describes a situation where a
woman brings a child from an earlier union into her new
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household upon remarriage or when entering a new domestic
arrangement. Normally Angaliyat child is absorbed into the
stepfather's household and is typically accepted and treated
socially as his own child keeping in kinship relation. She after
treated as foster child with affinity nonetheless, since Ancient
Hindu Law does not acknowledge girl child adoption, plaintiff
legitimately cannot raise claim of adopted daughter of
Bhovanbhai.
20. In the present case, learned counsel, Mr. Trivedi,
contended that since the plaintiff was brought into the family as
an Angaliyat and had been treated by the deceased, Bhovanbhai,
as his own child, she should be held entitled to inherit his
immovable properties. It is also submitted that learned Trial
Court has wrongly applied the principal of factum valet. It is also
proved that plaintiff was led by hand/finger of her mother from
her earlier union and continued when her mother remarried and
entered into the domestic union with deceased Bhovanbhai as
second wife. It is also undisputed that she was absorbed in
Bhovanbhai’s family and household, but in absence of any
custom or any source of ancient Hindu Law concede adoption of
a female child, she cannot be treated more than a foster child or
Angaliyat daughter brought up as duty of stepfather.
21. In view of the above, where the foundation of adoption
under Shastric Hindu Law sourced from religious texts
necessitating a son only to be adoptive child for the spiritual
benefit of the adopter and his ancestors, it is observed that only
a male child could be validly adopted. Furthermore, the
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performance of religious ceremonies, specifically the Datta
Homam was considered essential to validate an adoption, except
in certain schools of thought or among specific communities.
Aptly, the position of law has been drastically changed after the
year 1956. Hindu Adoption and Maintenance Act, 1956 permits
adoption of girls and whom were given independent statutory
custody to adopt.
22. In its authoritative pronouncement, the Privy Council in
case of Amarendra Mansingh Bharamarbar v/s. Sanatan
Singh [AIR 1993 Privy Council, 155] held that the foundation
of the Brahminical doctrine of adoption is the duty which every
Hindu owes to his ancestors to provide for the continuation of
the line and for solemnization of the necessary rites.
22.1. Thus in all, text and custom of ancient Hindu Law
acknowledge adoption of son only.
23. In view of the above, appellant – plaintiff in the present
case fails to prove that adoption of the girl child prior to the year
1956 was not permissible in the Hindu Law. The case of the
plaintiff that she was adopted by deceased Bhovanbhai in the
year 1949 as a condition precedent to marry with Maniben,
mother of the plaintiff, at the most could prove that she was
treated and absorbed as foster daughter and nothing beyond it.
24. It was also case of the plaintiff that revenue authorities at
some point of time have mutated her name in three different
survey number on the basis that she is adopted girl of the
deceased Bhovanbhai. This Court in the aforesaid terms and
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relying upon the various commentary of the various prominent
authors as well as judgment of Privy Council believes that prior
to enactment of Hindu Adoption and Maintenance Act 1956,
adoption of the girl child was not permissible and therefore,
based upon the theory of adoption if revenue entry has been
mutated, it would not create any title in favor of the plaintiff.
25. Division Bench of this Court in Letters Patent Appeal
No.1217 of 2023 in Special Civil Application No.2679 of
2021 between The Special Secretary (Appeals), Revenue
Department v/s. Boricha Ashokbhai Palabhai dated
22.09.2023 held that in absence of valid adoption or any other
legal document merely, on the basis of mutation no revenue
entry can be mutated. Relevant para 6 reads as under :-
“6. Heard the learned counsel for the parties and perused
the documents on record. In the present case, it is an
admitted position that the only proof of adoption of the
respondent is an affidavit made on a Rs.10 stamp paper,
purportedly by late Punjiben, the original allottee of the
subject land, attested before the Executive Magistrate, which
states that she has taken the respondent in adoption. Being
an illiterate lady, the affidavit bears the thumb impression of
late Punjiben. On the basis of such an affidavit, the
respondent herein claims to be the adopted son of late
Punjiben, who has been adopted after customary procedure,
prevalent in their society. The said affidavit by any stretch of
imagination cannot be said to be an Adoption Deed and the
same cannot be registered. As per the provisions of the
Gujarat Land Revenue Code, a person entitled to hold the
land as a legal heir, has to produce a valid document of
adoption. The said affidavit has been produced after the
death of Punjiben and has not been proved legally nor is
verified. In the absence of any proof produced by the
respondent with respect to the valid adoption and in the
absence of any other legal document as permissible in law,
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we are of the opinion that on the basis of such a document,
the respondent could not have claimed any right to be the
legal heir of the original allottee namely late Punjiben and
the Succession Entry No. 704 dated 07.11.1994 in favour of
the respondent could not have been effected, as such a
document has no value in the eyes of law and is an invalid
document under the provisions of the Code, for making such
a mutation entry in respect of heir-ship. After coming to
know about such a discrepancy in the revenue record, the
revenue authorities have rightly initiated the proceedings
under Section 79A of the Code on the proposal made by the
Mamlatdar. There is no delay in initiating such proceedings
from the date of knowledge of such discrepancy. The land
allotted to late Punjiben was the Government land, which
was allotted for cultivation on Santhani basis. It was not of
her ownership. In the present case, the respondent has not
initiated any civil proceedings to declare him as the legal
heir of late Punjiben. The said affidavit cannot be treated as
a valid legal document to decide the heir-ship of the
respondent.”
26. The plaintiff entered into witness box at Exh.31. She has
been cross examined. In cross-examination she has admitted
that she is the only heir of deceased Chhaganbhai, her biological
father and she received the inheritance as she is the sole
survivor of Chhaganbhai. From the oral evidence, what could be
inferred that the plaintiff has not renounced her family of her
biological father. She cannot receive the inheritance from both
biological as well as adoptive father. Once she is considered as
adopted daughter, necessarily she renounces the biological
family. But in the present case, cross-examination of the
plaintiff proves that she has also received inheritance from
biological family, thus it exclude her from claiming inheritance
right, if any, in regard to immovable property of deceased
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Bhovanbhai, the so called adoptive father.
27. The judgment relied by learned advocate for the appellant
plaintiff is factually different and therefore, it is not helpful to the
appellant / plaintiff.
28. In the aforesaid reasons, according to this court, the
learned trial Court has not committed any error, much less error
of understanding law or facts or appreciating evidence.
29. For the foregoing reasons, the appeal fails and accordingly,
stands dismissed. Interim relief granted earlier, if any, stands
vacated. Record and proceedings, if any, be send back to learned
Trial Court concerned.
(J. C. DOSHI,J)
SATISH
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